Does a Restraining Order Issued Against a Tenant or Occupant Automatically Default Him in the Lease?

Victims of domestic violence may terminate a lease early without penalty to escape their abuser.

The effect of a restraining order or protection from abuse order (PFA) varies depending on the jurisdiction. In general, a restraining order issued against a tenant will not automatically default him or her from a lease, but it may serve to allow the protected party to break a lease without penalty in an attempt to move to a different, safer location. Therefore, if a lease is in the name of two parties and one has issued a restraining order against another, the abused party may lawfully break a lease early in some jurisdictions.

Protection From Abuse Orders

In a handful of U.S. states, victims of domestic violence that have a protection from abuse order or restraining order against their cohabitant may lawfully terminate a lease agreement early without financial penalty. The law generally requires the victim to show evidence of a substantial risk of harm if she remains in the home and to show that relocation will substantially reduce the risk, the landlord is refusing to voluntarily release her from the lease and she is acting in good faith.

Abuser May Be Evicted

If the domestic violence victim does not wish to vacate the property and wants to remain under the lease, some jurisdictions will allow termination of the abuser's lease agreement without his consent. The abused party must obtain a court order directing the abuser to move out of the unit. The landlord should never allow the abuser into the unit without the consent of the abused party. Once the court order is issued, the landlord may freely terminate the lease of the abuser without his consent upon 24 hours' notice.

Default is Not Automatic

The lease default is not generally automatic and requires some level of judicial intervention before the abuser can evicted from the unit. Many statutes make eviction or termination optional at the discretion of the landlord, and the landlord must provide notice to the abuser that he is evicted and his lease is terminated.

Responsibility for Rent

If an abuse victim terminates his lease early, he will be liable for the balance of the rent for the remaining month. The same is true for a tenant who is evicted for being an abuser. Landlords cannot hold victims to the remaining balance on the lease as this would violate the statutes protecting victims of abuse from being forced to remain in dangerous and volatile housing situations.

References

• Divorce.ClementLaw; New York Domestic Violence Victims May Terminate Residential Leases: New York Divorce Report: July 2007
• Lane County Law and Advocacy Center: Housing Domestic Violence Rights: Legal Aid Services of Oregon
• Fair Housing Rights: Domestic Violence and Housing: Fair Housing in Southeastern Pennsylvania